In the judicial equivalent of a Friday night news dump, the Fifth Circuit Court of Appeals dropped a decision that paves the way for the next frontier in voter suppression. A three-judge panel of Trump appointees—James Ho, Kyle Duncan, and Andrew Oldham—gleefully tossed out one of the pillars of federalism in their zeal to help Republicans win elections whether people support them or not.
Mississippi has—well, had—a law that required the state to count absentee ballots received up to five days after Election Day if they were postmarked before or on the day of the election. The state made that change to its election laws during the COVID-19 pandemic, and they kept it on the books.
If you’re not brain-poisoned with right-wing propaganda about stolen elections, a law like this just makes sense. The person still has to have cast a ballot by Election Day. This way, their vote won’t be invalidated just because the United States Postal Service is somehow incapable of getting ballots to election centers within the three-to-five-day range they promise. Eighteen states—plus Puerto Rico, the Virgin Islands, and Washington, D.C.—have laws like this.
These days, Republicans who have marinated in the Trump fever swamp of voter fraud allegations hate laws like this. They’re committed to their worldview that mail-in ballots are ripe for fraud because that’s what Trump thinks, despite evidence showing that voter fraud such as double voting is vanishingly small.
So, back to Mississippi. In early 2024, the Republican National Committee sued the state, saying that the counting of late-arriving ballots was preempted by federal statutes that require all votes to arrive by Election Day. Mississippi is an odd choice for Republicans to turn their voter fraud suspicions on, given Trump took 57% of the vote in both 2016 and 2020. But by suing in Mississippi, they were guaranteed to get their appeal in front of a Fifth Circuit panel if they lost at the lower court.
The Fifth Circuit is the most conservative appellate court in the country. Of the 17 judges currently on the court, Trump appointed six of them. Only five of those 17 were appointed by a Democratic president.
The Fifth Circuit has given us such bangers as: Bump Stocks are Great, Actually and the Occupational Health and Safety Administration Can’t Enforce Workplace Safety Rules Because COVID-19 is No Big Deal. The court is so off the rails that even the conservative majority at the United States Supreme Court has started ruling against them repeatedly.
A man walks in front of the 5th U.S. Circuit Court of Appeals.
Getting repeatedly smacked down by the Supreme Court doesn’t seem to have cowed the Fifth Circuit at all. So why wouldn’t they, a mere eight days before the election, issue a decision that could wreak havoc in multiple states? And why wouldn’t they completely upend the inherent right of states—not the federal government—to decide how to administer elections?
In ruling that Mississippi can’t make its own laws about absentee ballots, the Fifth Circuit wasn’t actually interested in meddling in Mississippi’s 2024 election as such because there’s no question that the state will go for Trump. That’s why the decision remanded the case back to the lower court without issuing an injunction that would have blocked the state from accepting late-arriving ballots in 2024. Rather, this is all about a far-right push to declare that Election Day is a singular day and limit voting to in-person on that day.
In 2020, Democrats voted by mail at double the rate of Republicans. Early voting data for 2024 shows Republicans pulling nearly even, no doubt thanks to the GOP making a big mail-in voting push even while Trump runs around crying fraud about it. MAGA types won’t be happy until they’ve cut off all the ways in which voting could be made more accessible.
But first, they need to wrench the regulation of voting away from the states. The federal courts are stuffed to the gills with Federalist Society conservatives, and Republicans very much would rather have those judges in charge of elections than allow states to make their own rules. To do that, they need to flip the regulation of elections on its head.
As much as they’re supposed to be the states’ rights party, the GOP has very much embraced the notion that the federal courts get a veto over state election procedures whenever it suits them. It’s been a successful strategy for the right going back to Bush v. Gore, where the court’s conservative majority handed the election to George W. Bush by stopping Florida from using its own laws to recount votes.
U.S. Supreme Court Chief Justice John Roberts
Given that three GOP veterans of the Bush v. Gore battle now sit on the Supreme Court, why not lay the groundwork for that court to give GOP candidates a helping hand? Chief Justice John Roberts prepped the attorney who argued Bush v. Gore before the court, and Justices Brett Kavanaugh and Amy Coney Barrett both worked on the Bush legal team.
Last term, in a decision that regrettably none of the liberal justices dissented from, the Supreme Court invalidated Colorado’s removal of Trump from the ballot. In doing so, the court overruled the Colorado Supreme Court, essentially telling states that they cannot enforce their laws regarding ballot access. So, a state is not allowed to kick Trump off the ballot even if the state determined he was an insurrectionist and therefore not eligible.
Thanks to the Fifth Circuit, Republicans now have a decision in hand that says that federal law preempts state law when it comes to when absentee ballots can be counted. There’s no way to read the decision without concluding that if the Supreme Court agreed with it, it would invalidate every state law that allows late-arriving votes to be counted, even if they were postmarked by Election Day. While the Fifth Circuit decision may not affect Mississippi for 2024, there’s no telling what the GOP will do with this late-October gift.
The party has been attacking mail-in votes across the country this election cycle. Nevada, a prized swing state, requires that ballots received up to four days after the election be counted if postmarked on Election Day. Nevada isn’t part of the Fifth Circuit—it’s in the Ninth—but if Trump leads the state narrowly on Election Day, it seems almost inevitable that the GOP would trot out the Fifth Circuit decision in the hopes that another federal court would bite.
And if that challenge makes it all the way to the Supreme Court? It will find the warm embrace of three Bush v. Gore alumni. And there’s also Clarence Thomas, whose wife worked to overturn the 2020 election results, and still another, Samuel Alito, whose enthusiasm for flying insurrection-related flags is well known. It’s a court custom-made to wrench the vote away from the people and give it to Donald Trump.
